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A1P1 and public policy: compensation for not fishing?

An interesting Court of Appeal decision concerning the science of migratory salmon, and the circumstances in which compensation will be granted when an interference with Article 1 Protocol 1 is found.

For over forty years, Mr Nigel Mott has fished for salmon at Lydney on the River Severn with putcher ranks: rigs of conical baskets which trap adult salmon as they swim upstream in order to spawn.

Putchers had long enjoyed a privileged status as against other means of fishing. Owing to their designation as a “historic installation”, they were spared the controls and conditions which applied to rods and nets, and which have increasingly regulated fishing activity since the first Salmon Fisheries Acts in 1861.

Freedom to fish without restriction allowed Mr Mott to make his living from this ancient method: at £100 per salmon, his annual catch of 600 fish brought him a gross turnover of £60,000.

In 2011, new statutory powers enabled the Environment Agency (“the Agency”) to impose catch conditions on fishing licences granted in respect of historic installations “where it considers that it is necessary to do so for the protection of any fishery”.

Unfortunately for Mr Mott, the Agency took the view that the waters at Lydney were a teeming melting-pot of salmon genetic diversity. As well as containing salmon from the Severn itself, Lydney was said to be a stop on the home journey for salmon returning to spawn in the Rivers Usk and Wye, two small tributary rivers about 35km and 15km downstream of Mr Mott’s putchers. The River Wye had been designated a European Special Area of Conservation (“SAC”), and the Environmental Agency stepped in to impose conditions which protected its biodiversity. Mr Mott’s permissible catch was reduced to 30 fish in 2012 (and fewer in subsequent years).

First Instance

One dark night in the summer of 2012, Mr Mott’s putcher rank caught its 31st salmon of the season. Upon invitation, a small crowd of local press gathered on shore the next morning to greet its arrival – accompanied by a specially invited Agency officer. The supernumerary fish was immediately seized. Mr Mott himself was duly summonsed, and the district judge adjourned the Agency’s prosecution so that he could challenge the lawfulness of the catch conditions imposed by way of judicial review.

Mr Mott accordingly took the Agency to the High Court (read judgment). He argued (amongst other points): (1) that the decisions to limit the catch were irrational in the Wednesbury sense; (2) that they unlawfully interfered with his right to peaceful enjoyment of his possessions under Article 1, Protocol 1 (“A1P1”); and (3) that his claim should accordingly be amended to allow compensation under Section 8 of the Human Rights Act 1998.

At first instance, HHJ David Cooke found that the decisions were irrational. He agreed with Mr Mott’s incredulity at the evidence that any significant percentage of salmon caught 15km upstream from the River Wye would, but for their fatal encounter with the putcher rank, have gone on to respawn in a river of origin which they had already long overshot. In the judge’s view, it was ‘blindingly clear that the conclusion must be wrong’. Even had he not so found, he added, he would have held that the conditions imposed ‘would still have meant that the Claimant has been required to shoulder an excessive and disproportionate burden, such that A1P1 breach could only be prevented by payment of compensation’. The amendment for compensation was allowed. The Agency appealed the lot.

Judgment

The Court of Appeal reversed the judge on the irrationality challenge, and Beatson LJ provided some useful guidance on the role of the court in reviewing decisions based on scientific evidence. As any reader of the judgments will observe, the migratory dynamics of the homeward-bound salmon are complex: in circumstances like these, judges should afford an enhanced margin of appreciation to decision-makers relying on expert technical evidence.

As for the A1P1 ground, the Agency challenged the notion that reducing Mr Mott’s catch from 600 to 30 per annum was “closer to a deprivation than a control” of his right to peaceful enjoyment of his possessions: after all, he still had the licence. Furthermore, in a case of environmental control, “the court should accept that the public interest did not require that individuals should receive public funds in return for being prevented from pursuing activities that damage the environment”.

The Court held that the authorities support a “de facto” assessment of whether there has been a deprivation or a control (relying on Sporrong and Lönnroth v Sweden): in this case, it was closer to the former. Furthermore, even if the interference were only a control “it does not follow that because it is made on environmental grounds any restriction can be made without compensation”.

The Court agreed that the extent of the limit and the way it had been apportioned could only be prevented by the payment of compensation in this case (although it was not stated by how much).

Comment

In the long line of persons with whom the Agency fights its daily battles, Mr Mott stands at the sympathetic end of the spectrum. He has pursued an ancient craft with considerable respect and knowledge for many years, and public sensibility is unlikely to be sharply offended by compensation for the loss of his trade and livelihood. However, what about the hypothetical position where Fast Fried Fish Ltd is deprived of its right to purge the North Sea of its cod population with state-of-the-art mass-production nets? Where does the court draw a line with compensation for deprivation of possessions?

This question was considered at the Disney villain end of the sympathy scale when British American Tobacco Ltd and others sought compensation under A1P1 for expropriation of their property rights (the cigarette pack branding case; see judgment here). The losses in question were described as ‘truly immense’, and the question of A1P1 compensation was summarised by Mr Justice Green in the following terms:

The law indicates that in cases of true expropriation full compensation is payable save in “exceptional” circumstances. In my judgment it is quite obvious that the circumstances are exceptional. Tobacco usage is classified as a health evil, albeit that it remains lawful. There is no precedent where the law has provided compensation for the suppression of a property right which facilitates and furthers, quite deliberately, a health epidemic. And moreover, a health epidemic which imposes vast negative health and other costs upon the very State that is then being expected to compensate the property right holder for ceasing to facilitate the epidemic.

Mr Justice Green expressed a few supplementary views on the tobacco industry and its interests throughout the judgment. The industry was “an unequivocal social evil”, “internationally recognised as pernicious” and promoting a product which, adopting the Secretary of State’s phrasing, is unique in the world because it “kills half its long-term users prematurely”. On any view of the “exceptional circumstances” test, deprivation of rights which further such interests are likely to satisfy the threshold for no compensation being awarded.

It is worth noting at this juncture that any deprivation of possessions can only be lawful if (amongst other things) it is carried out pursuant to a legitimate public interest. It therefore follows that all possessions lawfully interfered with are to some extent standing in the way of the common good. True: in some cases, this may be a charming grazing pasture with the misfortune to find itself in the proposed path of HS2. However, there are of course cases where the deprivation will be in relation to possessions (often profits) which endanger matters such as public health, public morals or the environment. In these circumstances, the court will generally be required to conduct a more nuanced assessment of the appropriateness of compensation.

It was that, which the CA said, the Agency had not done: there had been no evidence that the Agency had considered the extent of the effect on Mr Mott and his livelihood: [89].

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Disclaimer: This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.